MAREVA INJUNCTION (LEGAL REQUIREMENTS)

1. Plaintiff has a valid cause of action.

2. Plaintiff must show that he has a good arguable case.
 The plaintiff must be able to prove by showing available evidence that there is an
existence of a fair chance of him obtaining judgment against the defendant. Even
so, it is still subjected to the court’s discretion to decide.
 BBMB v Lorrain Osman [1990] 3 MLJ 481: The plaintiff proved that the
defendant as a director of the plaintiff bank, failed to act honestly and discharge
his duties with reasonable diligence which subsequently cause the plaintiff to
suffer losses
 Ace King Pte Ltd v Circus America Ltd [1985] 2 MLJ 75: The plaintiff proved
that it had concluded a contract with the defendant whereby the plaintiff was
appointed to be the agents of the defendant to stage a circus show in Singapore
and Malaysia, which the defendant subsequently breached.
3. There is a fair chance on the part of the Plaintiff to succeed in his case.
 The plaintiff must make a full & frank disclosure in all matters in his knowledge
that are material for the judge to know.
 In Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153, the Supreme
Court emphasised that the plaintiff must make a full and frank disclosure of all
material facts. There must be no misleading or suppression of the material facts.
Failure to do so will be fatal
 Must specifically give reason and amount of claim.
 Assets must be shown that the assets are within the jurisdiction.
 Plaintiff must give grounds for believing that there are risks of Defendant
disposing of the assets.
 Plaintiff must give undertaking as to damages.
4. Risk of Defendant disposing of the assets.
 There must be a risk of the assets being removed by the defendant before the
judgment is satisfied.
  In the case of S&F international Ltd v Trans-con Engineering Sdn Bhd, the
court found that there was a risk of the appellant’s assets being removed as its
corporate structure inferred that it was not to be relied upon.
5. Court may input a maximum sum in order to cater to usage of his own assets.
 Motor Sport International v Delcont Sdn Bhd [1996] 2 AMR 2313: Where a
plaintiff makes a claim for an exact sum, a Mareva injunction that restrains the
defendant from dissipating his assets must specify an upper limit (a maximum
sum); if it does not, then the order is liable to be condemned as being too wide
and therefore oppressive. The remedy of a Mareva injunction is an equitable relief
that is granted to ensure that the course of justice is not thwarted. Since equitable
considerations are involved, a court should carefully weigh the balance of justice
to ensure that any order it makes or any relief it grants in the exercise of its
Mareva jurisdiction is not used as an instrument of oppression.
6. Defendants living expenses must be taken into account.
 Law Society v Shanks [1987]: Applications for Mareva injunctions should always
make provision for living expenses unless it was known that a defendant had
other funds. Similarly, there should be provision for the defendant to pay his
ordinary debts as they became due as it is not the purpose of a Mareva injunction
to establish the plaintiff as the primary creditor.
 Polly Peck International Plc v Asil Nadir [1992] 2.Llyod's Rep 238 : A
defendant cannot be required to reduce his ordinary standard of living or be
prevented from carrying on his business in the ordinary way, meeting his debts as
they become due merely to satisfy a judgment which may not be given in the
future.
ANTON PILLER (LEGAL REQUIREMENTS)

It is trite law that the following conditions must be satisfied before the Anton Piller
Injunction can be granted. They are as follows; (a) applicant must show extremely strong prima
facie against the respondent; (b) clear evidence the respondent is in possession of the
incriminating material etc., and that there is a real threat it will be removed, or destroyed; (c)
whether the refusal to grant such an order will have a serious effect on the plaintiff and lastly (d)
the court when granting the order must ensure the proper undertaking and detailed safeguards are
set out in the order which may include the appointment of independent supervising solicitor and
the manner in which the premises may be entered, searched and inspected inclusive of the
incriminating material which need to be removed.

This requirement is illustrated in the case of Penerbit Fajar Bakti Sdn Bhd v Cahaya
Surya Buku dan Alat Tulis [1989] 1 MLJ 386, whereby the court held that an Anton Piller
Order could be made on a mere suspicion that infringing materials would be destroyed by the
defendant once he had notice of a proposed action against him. It is submitted that this decision
is given per incuriam because it seems to suggest that mere suspicion instead of a strong prima
facie case of infringement would suffice for the court to grant an Anton Piller order. This
requirement is further applied in the case of Computerland Corp. v Yew Seng Computers Pte
Ltd [1991] 3 MLJ 201, whereby the Singapore Court of Appeal emphasised that, ‘the draconian
nature of the Anton Piller order should be granted only in exceptional circumstances. Further, the
court stated that it is imperative that on every application for an Anton Piller Order, the party
seeking it must satisfy the stringent requirements laid down in the Anton Piller case and the court
must scrutinise every circumstance in granting the order. The court has to balance Plaintiff’s
right to recover his property or to preserve evidence ‘against’ violation of the privacy of a
defendant who had no opportunity to put his side of the case. Any such order should only be
granted if the court is satisfied that there is a real risk of justice being frustrated.

Now moving to the first legal requirement that must be satisfied. The Plaintiff must show
there is an extremely strong prima facie case against the defendant. This is to determine that the
action is taken on a valid cause and that the applicant has a high probability of success. This
requirement can be observed based on the case of Anton Piller KG v Manufacturing Process
Ltd [1976] Ch.55, whereby the court is satisfied that there is prima facie case as there is
potential and actual possibility that the evidence may be destroyed by the defendant which would
cause damage to the plaintiff. This was also upheld in the case of Television Broadcasts Ltd v
Mandarin Video Holdings Sdn Bhd [1985] 1 MLJ 171, whereby prima facie was established
as the defendant had gravely infringed the plaintiff's right as the rightful owner due to the pirated
video cassettes.

Second, there is clear evidence that the Defendant is in possession of the incriminating
material and that there is a real threat it will be removed, or destroyed. There must be actual
evidence that the defendant is in possession of the document which must be shown to the court.
This is illustrated in the case of Anton Pillar KG v Manufacturing Processes Ltd [1976] Ch.
55, where the court emphasised that no court in this land has any power to issue a search warrant
to enter a man’s house so as to see if there are papers or documents there which are of an
incriminating nature, whether libels or infringements of copyright or anything else of the kind. It
must not be based on a mere suspicion that such materials exist, but there must be strong and
clear evidence to show they do exist. Hence, there must be clear evidence that the defendant is in
possession of the incriminating material before such order can be granted.

Third, the refusal to grant such an order will have a serious effect on the plaintiff.
Meaning that if the court does not grant such an order, there is a possibility that damage will
occur to the plaintiff as the evidence might be disposed of or destroyed, and will jeopardize the
plaintiff's main claim. To further explain this we look into decided cases such as Asia Television
Ltd & Anor v Viwa Video Sdn Bhd [1980] 3 All ER 405, whereby the court held that serious
damage may occur to the plaintiff if an Anton Piller Order is not granted if there are sufficient
evidence to show of such aftermath. Based on the evidence tendered, the court concluded that by
not granting such an order, it will affect the plaintiff by causing irreparable damage. Thus the
Order was then granted. However there are instances the court may not grant the order if it not
satisfied from the evidence or it is not reasonable or believes that it will not cause damage as
illustrated in the case of Lock International plc v Beswick [1989] 1 WLR 1268, where the
court held that the fact that the employee had behaved wrongfully and committed a commercial
misconduct did not justify the grant of an Anton Piller order as the court found the fear of
damage to the plaintiff to be exaggerated.
 Lastly, the court when granting the order must ensure the proper undertaking and detailed
safeguards are set out in the order which may include the appointment of independent
supervising solicitor and the manner in which the premises may be entered, searched and
inspected inclusive of the incriminating material which need to be removed. This is so that the
order is not being abused or used in a wrongful way. This is illustrated in the case of Yousif v
Salama [1980] 3 All ER 405 whereby, even when the file are not subject matter of the action,
the document is still relevant as the document are the best possible evidence to prove the
plaintiff’s case and that any further delay runs the risk of such evidence being destroyed. The
court allowed the application for Anton Piller Order.